SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  This is an application for leave to appeal from a sentence of five years imprisonment with parole eligibility set after serving two and a half years.  That single sentence was imposed for two offences contained in one indictment: entering premises with intent (count 1) and armed robbery in company with personal violence (count 2).  The learned sentencing judge erroneously imposed one penalty with respect to both offences.  This error means that the application for leave to appeal must be granted and the appeal allowed; the Court must now re-sentence the applicant:  R v Crofts,[1] R v Dolan[2] and R v HAP.[3]

[2] The relevant facts are set out by Chesterman JA so that my reasons for re-sentencing the applicant to an effective term of five years’ imprisonment, but with a parole eligibility date six months earlier than that originally imposed, can be briefly stated.

[3] The learned primary judge seems to have structured the original sentence in response to the submissions made to her on behalf of the applicant.  These were to the effect that because of the applicant’s significant criminal history and his demonstrated drug-related recidivism, his prospects of early release on parole were unpromising; his co-operation with the authorities was best recognised by imposing a head sentence at the low end of the appropriate range instead of an early parole eligibility date.

[4] Mr Heaton, who appears for the applicant, contends that the effective sentence should now be five years’ imprisonment with parole eligibility after 20 months.  This, he argues, would give appropriate recognition to the applicant’s cooperation with the administration of justice, particularly his undertaking to give evidence against his co-offenders under s 13A of the Penalties and Sentences Act 1992 (Qld).

[5] Mr Heaton does not contend that a head sentence of less than five years’ imprisonment should be imposed.  The seriousness of the applicant’s offending as a mature man with an extensive criminal history, including a prior conviction for a grave example of the offence of robbery, amply demonstrates the good sense of that concession.  The question is whether the applicant should have the benefit of a parole eligibility date earlier than at the half way point of his five year sentence.

[6] This Court has long recognised that the effective operation of the criminal justice system requires sentencing courts to give substantial discounts to offenders who have pleaded guilty and assisted with the administration of justice.  This is particularly so where they have implicated others and put themselves at risk of violent retribution whilst incarcerated:  R v Thompson,[4] R v D & Attorney-General of Queensland,[5] R v Gladkowski[6] and R v PX.[7]  The legislature has given statutory recognition to that principle in enacting s 13A.

[7] Mr Rutledge, who appeared for the respondent, fairly and properly conceded that an effective sentence of five years imprisonment with parole eligibility after two years was within the appropriate sentencing range in this case.  He argues, however, that the sentence imposed by the District Court judge was also well within range and urged this Court to re-sentence accordingly.

[8] Were this Court merely determining whether the sentence imposed at first instance was manifestly excessive, I would refuse the application for leave to appeal.  But, as I have explained, this Court is now required to exercise its own discretion in re-sentencing.  I would impose a sentence to give greater recognition than at first instance to the applicant’s extensive co-operation with the criminal justice system, especially that within s 13A.  The prosecutor conceded at sentence, as did Mr Rutledge in this appeal, that, without the applicant’s evidence, no charges could have been brought against his co-accused;  they have now been charged.  It is in the interests of the administration of the criminal justice system to encourage offenders like the applicant to cooperate in this way by sentencing them much more leniently than otherwise.  The sentence imposed which includes the parole eligibility date, must, however, adequately reflect the gravity of the offence:  R v Webber.[8]  In my view, the apposite sentencing principles applied to the facts of this case justify a sentence on count 2 of five years’ imprisonment with a parole eligibility date after serving two years, and a lesser concurrent sentence on count 1.

[9] I would grant the application for leave to appeal, allow the appeal, set aside the orders made in the District Court on 20 November 2008 and instead sentence the applicant on count 1 to 18 months’ imprisonment, and on count 2 to five years’ imprisonment with parole eligibility fixed at 27 May 2009, that is, after two years’ imprisonment.  In respect of each count, I would declare that 543 days of pre-sentence custody is time served under the sentence.

[10]  CHESTERMAN JA:  On 3 November 2008 the applicant pleaded guilty to entering the premises of a fast food outlet on 26 May 2007 with the intention of committing an indictable offence in the premises and to robbery with violence while pretending to be armed with a pistol, and in company.  He was sentenced on 20 November 2008 to five years’ imprisonment.  The parole eligibility date was fixed at 27 November 2009, at about the half-way point of the term.

[11]  It should be noted that the sentencing judge erroneously imposed only one penalty with respect to both offences.  It was necessary that a separate penalty be imposed with respect to each offence, the subject of a separate count in the indictment.  This Court must re-sentence.

[12]  One A was an employee of the fast food store.  He found the key to the safe, which had been lost by another employee, and kept it.  A had a friend, T, who shared a house with the applicant.  After finishing work one evening, A went to T’s house and discussed the possibility of robbing the store.  The applicant joined in the discussion and agreed to assist.  It was planned to rob the store on a night when A was working.  The applicant bought a replica firearm and masks and obtained some disposable overalls to wear.

[13]  On 26 May, 2007, the applicant and T entered the store wearing their disguises.  A was working at the store and by arrangement with the others, left the front door unlocked so that they could enter.  The applicant had the safe key, which was mistaken by a staff member for a knife.  T had the replica gun.  Upon entering the store, the gun was pointed at staff and they were told to get on the ground.  T pushed one staff member back to the ground by his shoulders when he tried to get up.  The applicant went straight to the safe at the location he had been told by A.  He used the key to open it and remove the money.  He also found another bag nearby which contained cash.  He put the contents of the safe into the bag with the other cash.

[14]  T told the store manager to open the tills.  She explained that there was no money in them.  He insisted.  She opened one of the registers and it contained no money.  She was then unable to open the other as she was too afraid.  T then shook the till and dropped it on the ground.  He then pushed the manager backwards and told her to get on the ground.  He then fled from the store.

[15]  The offenders took the store takings of $6,760 and left.

[16]  The following day, police executed a search warrant at the applicant’s residence.  They located a large sum of money in the applicant's shorts and rolls of coins, similar to that taken the previous night, was found near to where the applicant was sleeping.  Police also located a small fire that contained the remnants of packaging, paperwork, masks and clothing.

[17]  The applicant told police that he had been at home the previous night and denied involvement in the offence.  He declined a formal interview.

[18]  The applicant was originally charged with robbery, a circumstance of aggravation of which was that he was armed with a handgun.  He denied that charge and the matter proceeded to trial on 3 November 2008 at the Southport District Court.  The trial was adjourned for several hours after which the prosecutor sought the return of the indictment and presented a fresh one which alleged not that the applicant was armed, but that he pretended to be armed, with a handgun.  When re-arraigned the applicant pleaded guilty to both counts.

[19]  Sentencing was adjourned to 20 November 2008.  In the interval the applicant gave police a formal statement describing his participation in the robbery and the involvement of A and T.  On 20 November 2008, he signed an undertaking pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) promising to give evidence in accordance with his statement in the future prosecutions of his co-offenders.

[20]  The sentencing judge indicated that without the undertaking and the applicant’s promise of cooperation in the prosecution of A and T the sentence would have been one of seven years’ imprisonment with parole eligibility set after three years had been served.

[21] The applicant submits that the discount to his sentence given in recognition of his undertaking to assist in the prosecution of his co-offenders is not a sufficient reduction and did not reflect the value of his cooperation or provide a sufficient incentive for such cooperation.  The submissions were:

“[34] The learned sentencing Judge considered that parole was the appropriate circumstance for the applicant to be released back into the community rather than a suspended sentence as was contended for by defence counsel. That reason is, with respect, in the circumstances of this case, sound. However, an eligibility date at some point earlier than the statutory halfway mark was necessary in this case, to give appropriate recognition to the plea of guilty as well as the s 13A undertaking.

[35]The learned sentencing Judge considered parole eligibility after 3 years was the appropriate penalty in the absence of the s 13A undertaking, essentially giving credit for the applicant's plea of guilty by a 6 month reduction in the parole eligibility date.

[36]The s 13A undertaking warranted a significant discount quite apart from the discount from the applicant's plea of guilty. The further reduction in the eligibility date for parole of only 6 months resulted in the applicant serving a longer proportion of his sentence before being eligible for parole than in the 'but for' sentence and fails to result in a discernible reduction for the s 13A undertaking as opposed to the reduction for the plea of guilty.

[37]The reduction of 2 years in the head sentence equates to about a 28% reduction, however the effective reduction of only 6 months in the eligibility date for parole represents a reduction of only approximately 17% for the s 13A undertaking.

[38]It is respectfully submitted that the sentence ought to have been 5 years imprisonment with parole after 20 months. That would represent a reduction in the 'but for' sentence of 16 months which equates to approximately a 44% reduction for the s 13A undertaking which is more in line with the line of authority examined in R v PX.

[39] The eligibility date for parole would then be 27 February, 2009.”

[22]  The applicant has an appalling criminal history.  He is now 34 years of age.  His offending began when he was 19.  He was convicted of attempting to obtain money by false pretences, obtaining money by false pretences, stealing and receiving.  He was convicted and fined $75.  Two months later, in March 1993, he was given 12 months probation for receiving.  The next month he was dealt with for burglary, unlawful damage to property and the unlawful use of a motor vehicle.  He was given three years’ probation and ordered to perform 200 hours of community service.  In November 1993, he was convicted of burglary, stealing and breaking and entering.  He was sentenced effectively to four years’ imprisonment to be suspended after three months with an operational period of three years.  Those convictions effected a breach of his probation ordered in March 1993.

[23]  In February 1995, he was charged with breaking and entering a dwelling house, stealing with actual violence whilst armed with a dangerous weapon in company, deprivation of liberty and burglary.  These offences were committed during the operational period of the suspended sentence.  He was imprisoned for seven years for the armed robbery.  Lesser, concurrent, sentences were imposed for the other offences.  In August 2000, which cannot have been long after his release from prison, he was sentenced to three months’ imprisonment for being in possession of house breaking instruments and explosives.

[24]  The armed robbery for which he was sentenced in February 1995 was particularly serious.  He, with others, entered the home of an elderly woman at night armed with a light knife.  They overpowered her and ransacked her home, stealing what items of property and cash they found.

[25]  The applicant has a long addiction to drugs which largely explains his persistent, violent offending.

[26] In R v Webber[9] the President and I said in a joint judgment:

“We agree … that a prisoner who provides tangible cooperation in the prosecution of others implicated in a prisoner's or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such cooperation.

Although the discount for cooperation must be discernable, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished.  The balance between these competing demands will not always be easy to strike”.

[27]  To some extent this application is a demonstration of the difficulty.  The applicant’s cooperation will no doubt lead to the prosecution of his co-offenders who, without that cooperation, would have escaped punishment for their part in a serious, violent robbery.  But as the respondent points out, this case concerned a mature adult with a terrible criminal history who was the organiser of the robbery and who lent his experience in such offences to younger men and provided the implements to effect the robbery.  He took an active part in the robbery and to some extent led it.

[28]  This is not a case of an informer who has provided information to assist in the prosecution of those involved in more serious offending, or widespread criminal activity.  The applicant’s evidence relates only to the offence in which he participated.

[29] A constraining factor in reducing the applicant’s sentence is his extensive criminal history for similar offences and the seriousness of the offence he committed.  The judge noted:

“… the degree of leniency that you could legitimately expect from a Court is diminishing every time you appear in a Court.  You are getting older; you have faced different numerous judges on numerous occasions over the years for the repetition of serious offences.”

[30] Her Honour noted when indicating what sentence would have been imposed but for the applicant's cooperation:

“Insofar as the recognition to be given to your evidence against [T] and [A], it too has to be measured in its own context.  You only offered to provide that evidence against co-offenders on the day of your trial.  The persons against whom you have provided evidence were witnesses in the prosecution case against you.  The effect of the evidence you provided has been sufficient to justify charges being laid against both co-offenders, but I am told the cases against them are not overwhelming.”

[31]  This last comment was subjected to criticism by the applicant’s counsel who submitted that it diminished the importance of the evidence the applicant had promised to give.  He pointed out that at the sentence the prosecutor expressly accepted that the applicant had provided “significant assistance to the Crown case against the co-offenders … [and] without the … evidence there wasn’t sufficient evidence to instigate charges against them.”  The sentencing judge had observed in the course of argument that the case against the co-offenders depended entirely upon the applicant’s testimony as to their involvement.  Apart from A’s possession of the safe key there was no material implicating either of them in the robbery.  The weight of the applicant’s evidence would be adversely affected by his convictions for crimes of dishonesty and the circumstances in which he promised to give evidence against A and T:  on the morning of his trial when for the first time he admitted involvement in the robbery at which A and T were to be witnesses against him.

[32]  The observations were pertinent and accurate.  They did not indicate a misunderstanding of the significance of the applicant’s undertaking.

[33]  The applicant’s submissions apply an arithmetical, formulaic, approach to the task of discounting a sentence pursuant to s 13A.  It is said that it must be more than 17 per cent, and in the order of 28 per cent.

[34] This approach conflicts with authority.  In R v X[10] McMurdo P said:

“The appropriate discount for co-operation in any case will always vary according to the circumstances.  Thompson is not authority for any rigid formula that must be applied.”

McPherson JA agreed:

“… that there is no fixed formula or method for calculating a percentage or other rate on account of either a plea of guilty or co-operation with the police.”

[35] In R v Salameh,[11] Kirby P said:

“The amount of the discount is in the discretion of the trial judge.  There is no fixed discount … .  In my view, it would be highly undesirable to harness the discount by reference to fixed formulae.  The circumstances of each case are sufficiently special to warrant a high degree of flexibility in the discount provided for co-operation.”

[36]  The focus of the applicant’s complaint is on the difference of six months in the period he must serve in custody before being eligible for parole.  But for the cooperation, the period would have been three years.  The sentence actually imposed is five years with parole eligibility after two years and six months.  The complaint is based upon a false premise.  It is that in each case the applicant would have been released on parole on or about the date fixed by the judge as that on which he will be eligible for parole.  But that is not an assumption that can be made.  Many factors will influence the decision whether and when the applicant will be released on parole.  What must be compared is not the different parole eligibility dates but the overall sentence.  The sentence imposed is two years shorter than it would have been without the applicant’s cooperation.  In addition, there is the earlier eligibility for parole.  This is a significant difference.  Reduction in sentence is both “discernible and worthwhile”.

[37]  In my respectful opinion, the sentence imposed by the judge was sensible and appropriate.  It is necessary to re-sentence the applicant because of the oversight in not imposing a penalty on both counts.  There is, however, no reason to disagree with the discretion exercised below.  I would allow the application, set aside the orders made in the District Court on 20 November 2008 and instead sentence the applicant on count 2 to five years’ imprisonment with a parole eligibility date of 27 November 2009 and declare that 543 days of pre-sentence custody is time already served.  On count 1, I would sentence the applicant to 18 months’ imprisonment to be served concurrently, and with a similar declaration.

[38]  DAUBNEY J:  I respectfully agree with the reasons for judgment of Chesterman JA and with the orders he proposes.